Strict construction

(HOST) Supreme Court nominee Joseph Alito has been criticised both for his strict interpretation of the Constitution in regard to abortion rights and for not interpreting it strictly enough in regard to presidential power. To better understand what this means, commentator Vic Henningsen takes a look at the idea of "strict construction".

(HENNINGSEN) There is a popular and puzzling argument that we can interpret the Constitution correctly only by understanding the intention of the framers when they created it. This is popular with many conservatives, who see it as a necessary antidote to overly broad rulings by overly liberal judges.

It's puzzling because most of us recall that the framers them-selves disagreed about their intentions: during the convention; during the ratification conflict; and, most notably, during the tumultuous early national period, when they struggled to put into operation a system of government the Constitution had only outlined. Indeed, that experience forced some Founders, like Thomas Jefferson, to change their minds.

Jefferson defined the concept of strict construction in a debate with Alexander Hamilton over how much power the Constitution granted Congress. Jefferson claimed that if the Constitution didn't specifically grant a power, Congress didn't have it. Hamilton responded that the "necessary and proper" clause of Article I gave Congress broad implied powers. Arguments over the extent of federal power have raged ever since.

As a president favoring limited government and states rights, Jefferson loathed the broad rulings of Chief Justice John Marshall that strengthened federal power. In today's terms, Marshall appeared to be "legislating from the bench."

But over time Jefferson's position began to change, particularly in regard to presidential powers. He sent the Navy to fight the Barbary Pirates without seeking a congressional declaration of war; he purchased Louisiana, although the Constitution does not explicitly authorize the president to negotiate treaties to buy land. In fact, many historians observe that Jefferson was a strict constructionist while out of power; more of a broad constructionist when in.

Later, Jefferson's thinking changed even further. In retirement, he wrote, quote:"Some men look at Constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it...It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say for themselves, were they to rise from the dead. . ."

Jefferson continued: "[L]aws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change in circumstances, institutions must advance also, and keep pace with the times." End quote.

Those attracted to ideas like "originalism" and strict construction might review their understanding of the Founders' vision by examining the Founders' experience. Jefferson's career suggests that it's more complicated than they may think.

This is Vic Henningsen in Thetford Center.

Vic Henningsen is a teacher and historian. He spoke from our studio in Norwich.